The Savannah River, which Georgia wants to deepen along 35 miles between the Port of Savannah and the Atlantic Ocean, forms a shared boundary with South Carolina. In a recent filing, South Carolina environmental regulators denied a water quality permit sought by the federal agency overseeing the project, saying it would cause unacceptable harm to the waterway's endangered fish and fragile marshes.
The Army Corps of Engineers has appealed the rejection by South Carolina's Department of Health and Environmental Control. If the two agencies can't reach an agreement, the project could wind up in court.
The big question, which doesn't have a clear answer, is how much legal weight South Carolina's objection carries. Has Georgia's 14-year push to deepen the river hit a mere speed bump, or has it slammed into a brick wall?
"It's a very significant development," said Chris DeScherer, an attorney for the Southern Environmental Law Center who has followed the Savannah project. He argues the federal Clean Water Act allows states to veto such projects.
The Army Corps says just the opposite. Col. Jeffrey Hall, the agency's Savannah District commander, is warning South Carolina regulators that an exemption in the same law would allow the corps to ignore the state's objections.
In an Oct. 7 letter, Hall said he's prepared to invoke that exemption — which says states can't stop the Army Corps from maintaining waterways for ship navigation — if South Carolina doesn't grant the permit on appeal.
"The Corps expressly reserves the right to proceed based on a Federal exemption," Hall wrote. "However, the Corps would prefer to obtain favorable concurrences from South Carolina."
The Georgia Ports Authority has been seeking approval to dredge 6 feet of sand and mud from the river channel since 1997. It says deeper water is needed to keep the Savannah port, the fourth-busiest container port in the U.S., competitive as the shipping industry shifts toward supersize cargo ships that require greater depths. More of those giant ships are expected along the East Coast after 2014, when the Panama Canal is scheduled to finish a major expansion.
Curtis Foltz, executive director of the Georgia Ports Authority, dismissed South Carolina's permit denial as a "nuisance."
"This is an unnecessary burden, it's an unnecessary distraction, it's unnecessary time and money on a project that's already taking too long," Foltz said.
Gov. Nathan Deal has called the harbor deepening one of Georgia's top economic priorities. South Carolina is also scrambling for federal funding and permits for deeper water at the Port of Charleston, 100 miles north of Savannah. While the Georgia project is years ahead, South Carolina's stake in the Savannah River gives it some political leverage.
South Carolina Gov. Nikki Haley has previously spoken of Savannah's port expansion in hostile tones, telling a port audience in Charleston a year ago that "Georgia has had their way with us for too long." But she may be softening her position. Haley had lunch with Deal this month at the statehouse in Columbia, S.C.
"Georgia is our neighbor, and for that reason, Governor Haley and Governor Deal have a lot to talk about — including ports issues," said Rob Godfrey, Haley's spokesman. "What's good for the southeast is good for both of our states."
For now, environmental officials working under Haley say the Savannah project would not be good for South Carolina. Their permit denial says deepening the river channel from 42 to 48 feet would upset the delicate balance of freshwater and saltwater needed to sustain 1,200 acres of marsh and would reduce oxygen levels in the river, making it harder for endangered shortnosed sturgeon and other fish to thrive. It also said the state wasn't satisfied with the corps' plans to mitigate any damage.
Adam Myrick, spokesman for the South Carolina environmental agency, said its board would consider the corps' appeal at its meeting Nov. 10.
Georgia's Environmental Protection Division also wasn't entirely satisfied with the corps' plans. The permit it granted for the Savannah project in February came with 15 conditions that the corps must agree to — including a chance to modify the terms every five years.
But what if the corps could deepen the Savannah harbor without permits from either state? That's what Hall, the district commander in Savannah, suggested in his letter to South Carolina.
There's recent case law to support him.
Last year, a federal judge in the northeast ruled in a lawsuit between competing port states — Pennsylvania, Delaware and New Jersey — over plans to deepen more than 100 miles of the Delaware River. The Army Corps argued the Clean Water Act gives it an overriding responsibility to maintain the river for ship traffic. Opposing lawyers for Delaware said deepening the river from 40 to 45 feet wouldn't be exempt because it's an expansion, not maintenance.
Judge Sue Robinson disagreed. In January 2010, the judge interpreted the corps' power to "maintain navigation" to mean that if shippers are sending larger cargo vessels to U.S. ports, the corps has a responsibility to deepen waterways to accommodate them.
"Without sufficient channel depth, larger vessels would divert to other ports on the East Coast, thus threatening the market share of the Delaware River ports," Robinson said in her ruling, which allowed dredging to begin last year.
A federal judge in New Jersey also refused to let the opposing states stop the Delaware River deepening. The digging began last year, but no court has had the final word. Appeals are still pending.
DeScherer of the Southern Environmental Law Center said the judge's interpretation undermines the Clean Water Act's intent to add a layer of protection at the state level.
"If a project that has been referred to as the Savannah Harbor Expansion Project is suddenly explained as a maintenance project, the exception ends up swallowing the rule," DeScherer said.
There's another point to consider in the ongoing Delaware River battle. Initial studies for the deepening were ordered in 1983. It won federal approval in 1998. Yet the dredging didn't begin until 2010.
William B. McLaughlin III, government relations director for the Philadelphia Regional Port Authority, blames feuding between the states for dragging the project into its 28th year. The Savannah River deepening has been in the works only half as long. Federal approval, at the earliest, would come next year.
"States are in competition with each other. That's a fact of life," McLaughlin said. "There is no question that, overwhelmingly, the single most difficult hurdle to overcome has been the interstate competition."